Colm O’Cinneide: In Defence of the Strasbourg Court

The European Court of Human Rights and the influence that its judgments exert over UK law have recently come under sustained attack. The Court’s critics include Lord Hoffmann, the think-tanks Policy Exchange and Civitas, an assortment of Tory and Labour MPs ranging from Dominic Rabb to Jack Straw, and right-leaning newspapers such as the Daily Mail and the Sun. The judges of the Court have been criticised as being of variable quality, while its judgments are said to lack clarity and rigour. Furthermore, the Court also stands accused of foisting a form of undemocratic human rights imperialism on the UK, and of failing to show sufficient respect to the views of national politicians and judges.

These attacks on the Court surfaced with particular force during recent debates on whether prisoners should be given the right to vote. They have given impetus to the campaign for a British Bill of Rights and also triggered strident (if vague) demands for ‘reform’ of the Court. However, much of this criticism has been based on questionable assumptions about the role and functioning of the Strasbourg Court, which at times seem to be based on little more than an unhealthy dose of common law parochialism.

To begin with, the accusation made by Lord Hoffmann and others that the Court is insufficiently deferential to national law and practice in how it interprets the text of the when it decides cases under the European Convention on Human Rights (ECHR) is difficult to reconcile with the raison d’etre of the Court’s existence. When state parties ratify the ECHR, they effectively make themselves accountable to the Strasbourg Court for how they respect individual rights. The Court’s role is to interpret and apply the text of the Convention in a manner that ensures that individuals are not denied effective and meaningful enjoyment of these rights. Its job is not to interpret the ECHR as a minimalist promise by states to behave themselves, or to apply an overwhelming presumption that the law and practice of state parties is above reproach, or to confine its attention to flagrant breaches of human rights norms, as its critics have advocated. None of these interpretative approaches would be consistent with what is now established practice in international law. The Court cannot give a general carte blanche to state law and practice while remaining faithful to its prescribed task under the Convention.

Furthermore, the Court has been happily applying its interpretative approach for decades. Recent controversial decisions such as Hirst v UK (2006) 42 EHRR 41 (prisoner voting rights) have been decided on a similar basis as earlier decisions such as Dudgeon v UK(1981) 4 EHRR 149 (ban on homosexual sex contrary to the ECHR), Smith and Grady v UK (1999) 29 EHRR 493 (ban on homosexuals serving in the armed forces incompatible with Article 8 of the Convention) and Goodwin v UK (2002) 35 EHRR 447 (failure to give legal recognition to the change of gender of a post-operative transsexual also incompatible with Article 8 ECHR). Its critics are very vague when it comes to identifying what exactly they dislike about the Court’s decision-making, or how decisions like Hirst differ from these earlier judgments which are now widely recognised as having being correctly decided.

The argument that the Court is less than competent in how it goes about its business is also highly questionable. The Court is groaning under an excessive case-load. Like all courts, it makes the odd dubious decision. Furthermore, some of its judges may not always be top-quality. However, there are two sides to this particular story. Many of the Court’s judges are intellectually outstanding, and they receive good quality support from the lawyers in the Registry of the Court. Its judgments may sometimes be relatively opaque to common law eyes. However, its task is not to produce precedent fodder for English courts, and its reasoning is often crystal clear on the essentials of a case. Furthermore, an arguable case could be made that the Strasbourg Court often gets things more consistently right than many of its national counterparts. The Court’s decisions in the Marper v UK (2009) 48 EHRR 50 (DNA evidence) and Gillan v UK (2010) 50 EHRR 45 (anti-terrorism stop and search powers) cases reversed earlier decisions of the House of Lords, and now are being given effect with enthusiasm by the coalition government’s Protection of Freedoms Bill.

Its critics also complain that the Court contains judges from small and apparently insignificant jurisdictions. For example, Lord Hoffmann in his lecture to the Judicial Studies Board in 2009 poured especial scorn on the effrontery of a Slovenian judge who had the cheek in a concurring opinion in Von Hannover v Germany (2005) 40 EHRR 1 to criticise the free speech jurisprudence of the US Supreme Court. However, this comment oozes common law insularity. There is no intrinsic reason why a Slovenian judge would be less capable of passing comment on comparative free speech case-law than would, say, a Scottish judge, or one from Northern Ireland.

Indeed, Lord Hoffmann’s example neatly undermines his own case. The Slovenian judge he mentions, Judge Zupančič, served on the Slovenian Constitutional Court and the UN Committee Against Torture before joining the Strasbourg Court, and has both a LLM and a SJD from Harvard Law School. He thus appears to be extremely well-qualified both to decide claims under the ECHR and to make comments on the US case-law, notwithstanding the alleged handicap of his Slovene nationality.

Criticisms of how the Strasbourg Court goes about its business of interpreting the ECHR are thus often wide of the mark, or based on casual generalisations that begin to fall apart under close scrutiny. This in itself will not assuage all the critics of the influence that the Court currently wields over UK law, many of whom object to an international court deciding important questions of law and policy irrespective of how well or otherwise it performs its adjudicative task. However, critics of how the ECHR jurisprudence has come to infuse UK law should think twice before basing their arguments on a caricature of how the Court operates.

Over the last decades, the Strasbourg case-law has often forced a re-assessment of common law complacency and the insularity that periodically afflicts UK constitutional thought. It would be regrettable if the ongoing Bill of Rights debate were to be distorted by attacks on the Strasbourg Court that appear to lack real substance.

Colm O’Cinneide is a Reader in Law at University College London.

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10 comments on “Colm O’Cinneide: In Defence of the Strasbourg Court”

Well said, Colm. I’ve been amazed by the combination of vehemence and vagueness from senior politicians (generally on the right) determined to ‘reform’ the Court or Convention but lacking a single concrete and realistic suggestion as to what this would mean. Ken Clarke, who should know better, was one of them (perhaps merely trying to appease the right, which of course, hasn’t worked).

I think you’re absolutely right that Marper and Gillan, in comparison to their hyper-deferential House of Lords judgments, refute the complacent British notion that the Court has nothing to teach *us* about protecting rights. To these, you could add A v UK (on the Belmarsh scheme and particularly the part on Special Advocates and Art 6) which formed a sharp contrast to the muddle the House of Lords got itself into on the issue in MB and AF (2007). In a forthcoming article in McGill LJ with Helen Fenwick on the wider constitutional implications of the control orders saga, we made a comment immediately brought to mind by your piece above:

‘the contrast between the deference and equivocation often displayed by senior British judges and the unanimity and confidence of the Strasbourg court has been striking – and an effective rejoinder, we suggest, to Lord Hoffmann‟s recent condescending dismissal of the jurisprudence of that Court’.

The UK would be totally lost without the Strasbourg Court. In any event, it’s quite hard to get officialdom to adhere to its jurisprudence. Most public officials still act like they have never heard of Strasbourg at all. Do you think that a British Bill of Rights would fare any better? Just kidding!

Terrific post Colm. I totally agree. I heard Jack Straw say in a Radio 4 panel discussion on Strasbourg hosted by Nick Robinson that the Court is setting itself up as a ‘supreme court for europe’, which is absurd both because it’s obviously false in one way, and obviously true insofar as the interpretation of the Convention and protocols are concerned.

But to say Lord Hoffmann’s lecture reflected ‘common law insularity’ may even be too kind. I’m reminded by the trenchant critique of his judgment in the Belmarsh prison case (A and others v SSHD: [2004] UKHL 56) by David Dyzenhaus, ‘An Unfortunate Outburst of Anglo-Saxon Parochialism’ (2005) 68 MOD. L. REV. 673.

The most shocking parliamentary example of similar parochialism I noted when reading prisoner voting debates was this tidbit from Peter Lilley (Conservative) at 551 of the prisoner voting debate:

“How did we get into this pickle? As we have heard, after the war Lord Kilmuir codified what were seen to be British liberties and rights in the presumption that … enshrining them in the European convention on human rights would bring the advantage of British liberties to “lesser breeds without the law”, as Kipling had it.” That comment went unanswered.

This is the gallery to which Lord Hoffmann is playing, and it is an attitude all liberals hoped had ended when the sun indeed did set on the British empire.

Having taken the time to read Lord Hoffman’s speech, I was more persuaded by his arguments.

Firstly, he called into question the entire idea of an international body applying abstract principles to specific national cases. He thereby considers the very notion of an international judicial body such as a the ECHR as ill-advised. You don’t provide much to rebut the idea that the precise details of human rights must be decided at a national basis, other than stating that certain judgments of the ECHR have, in retrospect, happened to coincide with changes in English society.

Secondly, you misrepresent his comments on the Slovenian judge. Lord Hoffmann never queried his academic abilities. The problem is not whether he is sufficiently qualified, but rather that he is deciding upon matters that should rightly be decided in England.